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Premises Liability – Hazardous Premises – Plaintiff employee of mall tenant falls as an alleged result of hole near handicap ramp – Closed head injury – Permanent headaches and eye droop – Aggravation of degenerative conditions to neck, back and shoulder – Non-fracture hand injuries.

Atlantic County, NJ

The 65-year-old plaintiff employee of one of the defendant mall’s tenants contended that an approximate three inch by four inch hole was present near the front of the mall and in the proximity of a handicap ramp that transitions from the macadam parking lot onto the concrete ramp/sidewalk. The plaintiff tripped and fell, hitting her head on the ramp. She sustained injuries including a closed head trauma. Neither party presented expert testimony on liability. The plaintiff argued that defendant must have had constructive notice because the accident location was near a handicap ramp area in a heavily-traveled section at the main mall entrance. The defendant denied that a defect existed or that the plaintiff fell as a result of a hole.

The incident occurred on a sunny day. The accident was captured on three different mall surveillance cameras. The plaintiff tenant fell forward and struck her head on the concrete ramp. She got up and went inside the mall. Aside from the surveillance videos, there were no eyewitnesses to plaintiff’s accident. The jury watched the accident from all three camera angles and the defendant argued that the videos did not support the plaintiff’s position.

Five days after the accident, the plaintiff reported her accident to an employee of the mall’s security contractor, indicating that she tripped and fell because of a crack or hole in the curb area. The plaintiff also told the security employee that, several days after she fell, she observed someone patching the hole that caused her to fall. The defendant filed a motion in limine to bar the post-accident photographs that depicted the patched hole, as it represented a subsequent remedial measure.

The judge ultimately ruled that the photographs could be used to support the plaintiff’s claim as to the location of the alleged defect, which the defendant denied existed. The court also instructed the jury that the photographs of the patched hole cannot be used to establish negligence by the mall, but can only be used to establish the location of the hole. At trial, defense counsel did not call any of his mall employees, preferring to argue that plaintiff failed to prove constructive notice.

The plaintiff’s neurologist contended that the plaintiff suffered a closed head trauma and permanent headaches. The plaintiff’s neurologist also maintained that the head injury involved some neurologic components that resulted in ptosis (droopy eyelid) that is permanent in nature. The plaintiff’s pain management physician contended that the plaintiff suffered an aggravation of degenerative disease in the neck, lower back and shoulder and will permanently suffer increased pain and restriction. The plaintiff further maintained that the non-fracture hand injury will permanently cause pain and weakness. The defendant produced no medical testimony.The jury found that the defendant was not negligent and did not reach the issue of damages.

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